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The Place of Law in John R. Commons’ Legal Foundations of Capitalism: Influences, Appropriations and Context

Author

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  • Thierry Kirat

    (TRIANGLE - Triangle : action, discours, pensée politique et économique - ENS de Lyon - École normale supérieure de Lyon - Université de Lyon - UL2 - Université Lumière - Lyon 2 - IEP Lyon - Sciences Po Lyon - Institut d'études politiques de Lyon - Université de Lyon - UJM - Université Jean Monnet - Saint-Étienne - UJM EPE - Université Jean Monnet (EPSCPE) - CNRS - Centre National de la Recherche Scientifique)

Abstract

Commons has a special position in institutionalism for his commitment to understanding the legal embedding of American capitalism and the relationship between the legal and economic orders. The article analyzes Commons' approach to law and characterizes his levels of analysis. Commons, notably in "Legal Foundations of Capitalism", read certain legal writings from which he drew lessons for his own analysis, in a double movement of influence and appropriation. He drew on Hohfeld's theory of legal rights and some of his critics to develop his theory of transactions. He also carefully studied the jurisprudence of the US Supreme Court, to develop certain key concepts (going concern, futurity, intangible property, goodwill). Finally, Commons' institutionalist political economy has affinities with the Legal Realist movement.

Suggested Citation

  • Thierry Kirat, 2026. "The Place of Law in John R. Commons’ Legal Foundations of Capitalism: Influences, Appropriations and Context," Post-Print halshs-05503466, HAL.
    • Handle: RePEc:hal:journl:halshs-05503466
    Note: View the original document on HAL open archive server: https://shs.hal.science/halshs-05503466v1
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